The entrepreneur was convicted under Part 3 of Article 180 of the Russian Criminal Code in connection with the unlawful use several trademarks on counterfeit goods. The defense attorney insisted that this action should be recognized as a single violation, not a repeated one.
The Constitutional Court determined that the nature of intellectual property law allows for the possibility of a single act infringing the rights of several IP objects. This approach has been confirmed in the Plenum of the Supreme Court of the Russian Federation, and is also supported by case law.
The court stated that the law allows for individualization of liability. The court may take into account the insignificance of a violation, impose a more lenient sentence than prescribed by law, including a sentence below the statutory minimum, or release from legal liability.
Irina Ozolina, senior partner of «Zalesov, Timofeev, Gusev and partners», Russian patent attorney, commented to «Attorney’s Newspaper».
«If the legislator wanted to establish that the use of multiple trademarks on a single product constitutes a criminal offense, they would have included this directly in Article 180 of the Criminal Code, along with major damages and repeated offenses. When multiple trademarks of a single right holder are used on a product, it's usually not just a matter of creating confusion and exploiting the reputation of another manufacturer, but more often than not, counterfeiting the product, which is significantly more socially harmful, and therefore such a violation should fall under the Criminal Code. Moreover, we are not talking about a situation where the same trademark can be deemed confusingly similar to different trademarks — in such cases, applying the "repeatability" criterion is hardly fair.»
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